The Serious Flaw in the Biden Administration’s New Border Asylum Adjudication System
Four months into the implementation of the new asylum adjudication system at the southern border, the timing concerns expressed by many, including AILA and the American Immigration Council, remain.
The Department of Homeland Security (DHS) is starting to implement the new system slowly, in part to examine any problems it encounters before issuing a final rule, and in part because it will need to hire hundreds of new asylum officers to process the asylum claims from migrants who enter through the southern border. Through September, only a few hundred people had been processed under the new system.
The heart of the new border asylum adjudication system is its assignment of initial adjudication, even of these defensive claims, to asylum officers rather than immigration judges. In principle, this is a very good reform. Non-adversarial administrative proceedings offer more rapid adjudication than hearings in the immigration courts with their backlog of nearly two million cases. They are also less expensive for the government and less unnerving for the applicants who have already suffered trauma.
However, while these features, improve the adjudication system, there is a grievous flaw: excessively short timelines. Under INA Sec. 208(b)(1)(B)(ii), evidence to corroborate a claim for asylum must be provided unless the applicant does not have it and cannot reasonably obtain it. Yet the new system requires applicants to file such evidence with an asylum office, if by mail, ten days after the credible fear determination. Since Asylum Merits Interviews (AMIs) can be held as soon as 21 days after that determination, the evidentiary deadlines may elapse as soon as 11 days after release from detention. An applicant who is referred to immigration court must file corroborating evidence at the status hearing 60 days after the referral. Both time limits are much too short. It often takes months for asylum seekers, especially those who are indigent, to obtain lawyers, and months for lawyers to collect the necessary corroborating evidence. Such evidence often consists of declarations from eyewitnesses in the country from which the asylum seeker is fleeing (who may themselves be at risk), documents such as arrest and hospital records, police reports, psychological and medical examinations in the U.S. to show the effects of beatings and other harm, and expert testimony to fill in the gaps of published human rights reports.
Immigration lawyers may be reluctant to accept these cases because they cannot competently and diligently represent clients on timetables too short to permit the collection of corroborating evidence. In fact, in June 2022, AILA surveyed its members who handle asylum cases about their willingness to accept cases under the new system, about their experience handling expedited removal cases in the past, and what they expected to do after the new rule took effect. Twenty-six lawyers responded to the survey, too low a response rate from which to draw statistically robust conclusions, but valuable information nevertheless. Several of these lawyers who represented a substantial number of clients in expedited removal proceedings reported that because of the short timelines, they would accept fewer than half as many clients who were subject to the new process. Some said that they would not accept any such cases. Many said that they would have a hard time meeting the new deadlines. They estimated that it took clients who had received positive credible fear determinations about four months to contact them and for the lawyers and clients to agree to the representation. Most said that it took at least another four months to eight months to collect the necessary corroborating evidence.
One of the asylum lawyers commented that “the system is already difficult enough but the timeline makes representation nearly impossible at scale.” Another said that “Expecting those fleeing violence to have all their paperwork with them at the border is contrary to our long-established practices, ignorant of the realities facing refugees, and contradictory to Due Process.”
A third wrote: “The timeline makes it almost impossible for people to get attorneys unless they are pro bono because the clients usually don’t have the resources to pay for representation on such a short timeline and then pro bono resources are already excessively strained without taking into consideration the number of cases that will be on an expedited timeline. The timeline almost guarantees people without a straightforward case won’t be granted relief because they don’t have attorneys able to flush out the details necessary.”
Another explained: “Asylum applicants are going through trauma, abuse, and extreme poverty. Working with survivors requires training on mental health issues that impact trauma exposed people. It takes months and several sessions to gain the trust of your client for them to tell their story. That is something that is impossible to do in a few hours or days. Asylum applicants need to speak to someone who knows their language [and] body language[,] and cultural differences can be lost in translation.”
In summary, the immigration attorneys themselves, the ones who would be advocating for these asylum seekers, are telling the administration that these timelines are far too short. Forcing these deadlines on asylum seekers will undermine due process and damage the integrity of an asylum process that many had hoped would be a significant and welcome change, helping migrants and allowing the administration to work more efficiently and humanely. Lengthening the timelines would help the new system to realize this promise.
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The authors have recently written a law review article expanding on why the time limits in the new system are unfair to asylum seekers. After updating, the article will be published next May in the Howard Law Journal. Meanwhile, the article can be downloaded from the website of the Social Science Research Network. Click here to access the article.
Additional resources on AILA’s website:
Fast Tracking Asylum at the Border will Undermine Due Process